Kerala High Court
Lt. Col. A.A. Aphraim (Rtd.) vs Rajiv Ranjan on 1 July, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
CON.CASE(C) NO. 739 OF 2022
AGAINST THE JUDGMENT DATED IN OP(CAT) NO.211 OF 2016 OF HIGH
COURT OF KERALA
PETITIONER:
LT. COL. A.A. APHRAIM (RTD.)
AGED 82 YEARS
KALIYADAN HOUSE, 94 HILL GARDENS, ANCHERY P.O.
THRISSUR, PIN - 680006
BY ADVS.
SHAJI THOMAS
JEN JAISON
RESPONDENTS:
1 RAJIV RANJAN
AGED 58 YEARS
PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION),
DRAUPADI GHAT, ALLAHABAD, UTTAR PRADESH,
PIN - 211014
2 MUKESH KUMAR SINHA
PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION),
DRAUPADI GHAT, ALLAHABAD, UTTAR PRADESH ( SOUGHT TO
BE IMPLEADED )
BY ADVS.
K.R.RAJKUMAR
KRISHNA T C
SHRI.K.S.PRENJITH KUMAR, CGC
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.06.2024, THE COURT ON 01.07.2024 DELIVERED
THE FOLLOWING:
Con. Case(C) No.739 of 2022
-2-
ANIL K. NARENDRAN & VIJU ABRAHAM, JJ.
-- -- -- -- -- -- -- -- -- -- -- -- --
Con. Case(C) No.739 of 2022
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 1st day of July, 2024
JUDGMENT
VIJU ABRAHAM, J.
Above Contempt of Court Case is filed alleging
noncompliance of the directions in Annexure A4 judgment in
OP(CAT) No.211 of 2016. It is contended that the petitioner was
commissioned in the Indian Army during the emergency of
Chinese aggression. After the emergency, the petitioner and
other emergency commissioned officers were granted NCC
permanent commission which was a one-time measure limited to
existing officers as on 23.05.1980 and they were paid from
defence estimate under the Army head. It is further contended
that these officers were treated at par with their counterparts in
the Army with regard to their pay/allowance and perks all
throughout their service and even after their retirement with
regard to their pension. However, by Circular No.144 dated
27.01.2010, (Annexure 3 in the O.A.) the pension disbursing
authorities were directed to review the case of the NCC Whole
Time Officer like the petitioner, stating that they are not entitled
to get the benefit of the letter dated 21.05.2009 issued by the
Government of India and that payment of pension to them under
pay band IV has resulted in over payment of pension. It is
aggrieved by the same, O.A.No. 418 of 2014 was filed before the
Central Administrative Tribunal, Ernakulam challenging
Circular No.144 dated 27.01.2010. The Tribunal by Ext.P6 order
declined to interfere with the impugned circular but relying on
the judgment in State of Punjab and Others v. Rafiq Masih
(White Washer)[ AIR (2015) SC 696] directed the
respondents not to effect any recovery of excess payment from
the applicants. Aggrieved by the same the petitioner has filed
OP(CAT)No.211 of 2016 before this Court, challenging Ext.P6
order.
2. It is contended that while the said OP(CAT) was pending
consideration, the Government of India issued Annexure A1
(Ext.P13 in OP(CAT)No.211 of 2016) and decided to give
pension to the NCC Wholetime Officers who have retired from
service prior to 2006 treating them at par with counterpart in
the Armed Forces for fixing their pension in pay band IV with
effect from 01.01.2006 and also decided to refund the amount
already recovered. In light of Annexure 1, the respondents
issued Annexure A2 Circular (Ext.P14 in OP(CAT)No.211 of
2016). Thereafter, by Annexure A3 (Ext.P15 in OP(CAT)No.211
of 2016) the Director General NCC was informed by the
respondent that in the light of Annexure A1 and A2 necessary
instructions have been issued to all pension disbursing agencies
to revise the minimum guaranteed pension. It is further
contended that in another case O.A.No.1053 of 2016, the
Central Administrative Tribunal has quashed the impugned
Circular No.144 dated 27.10.2010 also.
3. Taking note of the above marked Annexures and order
of the Tribunal in O.A.No.1053 of 2016, this Court passed
Annexure A4 judgment directing respondents 1 to 5 in the OP
(CAT) No.211 of 2016 to see that all consequential steps by way
of necessary reliefs should be granted to the petitioners if the
same has not been granted, without any delay, at any rate
within a period of 2 months.
4. Petitioner submits that the pension of the petitioner was
fixed as Rs.26,265/- per month at par with pension of the Army
Officers of equivalent rank during the 6 th pay commission (i.e.
pay band IV). The petitioner would contend that a Circular
bearing No.555 dated 04.02.2016 was issued by the Principal
Controller of Defence Accounts, Allahabad (PCDA) whereby the
pension of Army Officers was revised and enhanced to
Rs.37,465/- from Rs.26,265/-. The contention of the petitioner is
that the benefit of the said circular was not extended to the
petitioner mainly because the Government of India decided to
give notional fixation of pension with effect from 01.01.2006 in
respect of NCC whole time officers treating them at par with
regular Army Officers of equivalent rank, as recommended by
Director General NCC only on 19.09.2019 by Annexure A1
letter. Petitioner submits that this has resulted in a huge
reduction in the monthly basic pension of the petitioner. The
contention of the petitioner is that the benefit of Circular
No.555 dated 04.02.2016 is not extended to the petitioner and
the said action is in violation of the directions in Annexure A4
judgment and therefore, the present Contempt of Court Case is
filed.
5. Two affidavits were filed by the respondents. It is
contended that based on Annexure A1 letter dated 19.09.2019,
the pension of the petitioner was revised at par with regular,
Army, Navy and Air Force officers. It is also submitted that the
petitioner cannot claim the benefit of Circular No.555 dated
04.02.2016 since it is issued based on the decision of the
Government of India to implement "One Rank One Pension"
scheme for ex-servicemen which is a policy decision
implemented with the objective of ensuring that uniform
pension be paid to the defence forces personnel retiring in the
same rank with the same length of service regardless of their
date of retirement and the same was intended to be extended to
the ex-serviceman and commissioned officers of the armed
forces and the petitioner who was granted permanent
commission under NCC and who was never granted permanent
Commission in the Army, Navy and Air Force cannot aspire for
the benefit under "One Rank One Pension" scheme. It is also
stated that the "One Rank One Pension" scheme is a policy
decision of the Government and the beneficiary under the
scheme is also well defined. It is further stated that the
petitioner has never claimed for the benefit of "One Rank One
Pension" either in the O.A. before the Tribunal or in the
OP(CAT) before this Court and such a claim has been raised for
the first time in this Contempt of Court Case. It is further
submitted that if the the petitioner has a case that he is entitled
to the benefit of the "One Rank One Pension" scheme, he has to
agitate the same through appropriate legal proceedings and the
same cannot be agitated in the present Contempt of Court Case.
6. We have considered the rival contentions on both sides.
Admittedly, the directions in the judgment in OP(CAT) No.211 of
2016 have been complied with. Even in the contempt, the
petitioner admits that the pension of the petitioner was fixed as
Rs.26,265/- per month at par with the pension of the Army
Officers of equivalent rank during the 6 th pay commission (i.e.
pay band IV). The present grievance raised by the petitioner is
that the benefit of Circular No.555 dated 04.02.2016 has not
been extended to the petitioner. Admittedly, the benefit of the
said Circular was never claimed by the petitioner either in the
O.A. or in the OP(CAT) before the issuance of the judgment
dated 09.11.2021 in OP(CAT) No.211 of 2016. Such a claim has
been raised for the first time in the present Contempt of Court
Case. The respondents have taken a stand that the extension of
the benefit of the "One Rank One Pension" scheme is a policy
decision of the Government and the beneficiary under the
scheme is also well defined and that the petitioner who was
granted permanent commission under NCC cannot claim the
benefit of the said scheme which is intended for the ex-
servicemen and commissioned officers of Army, Navy and Air
Force.
7. The question is whether the petitioner can agitate a
claim based on Circular No.555 dated 04.02.2016 and seek for
the benefit of the "One Rank One Pension" scheme in the
present Contempt of Court Case, specially when the benefit
flowing out of Annexure 4 judgment has been granted to the
petitioner and further that the petitioner has not raised a claim
based on the said Circular either in the O.A. or in the OP (CAT).
8. It is settled law that the court while exercising the
contempt jurisdiction can only adjudicate in respect of the
disobedience alleged and the court cannot travel beyond the
four corners of the order which is alleged to have been flouted
or enter into questions that have not been dealt with or decided
in the judgment or the order, violation of which is alleged and
that no order or direction supplemental to what has already
been expressed could be issued by the court while exercising
jurisdiction in the domain of the contempt law. In the present
case, even the petitioner does not have a definite case that the
direction in Annexure 4 judgment has not been complied with.
What is complained of is that the benefit of Circular No.555
dated 04.02.2016 has not been extended to the petitioner. It is
an admitted fact that no claim has been raised by the petitioner
either in the O.A. or in the OP(CAT) based on Circular No.555
dated 04.02.2016.
9. The Apex Court in Sudhir Vasudeva v. M. George
Ravishekaran[(2014) 3 SCC 373] has observed as under, in
the context of exercise of contempt jurisdiction:-
19. The power vested in the High Courts as well as this Court to
punish for contempt is a special and rare power available both
under the Constitution as well as the Contempt of Courts Act, 1971.
It is a drastic power which, if misdirected, could even curb the
liberty of the individual charged with commission of contempt. The
very nature of the power casts a sacred duty in the Courts to
exercise the same with the greatest of care and caution. This is
also necessary as, more often than not, adjudication of a contempt
plea involves a process of self-determination of the sweep,
meaning and effect of the order in respect of which disobedience is
alleged. The Courts must not, therefore, travel beyond the four
corners of the order which is alleged to have been flouted or enter
into questions that have not been dealt with or decided in the
judgment or the order violation of which is alleged. Only such
directions which are explicit in a judgment or order or are plainly
self-evident ought to be taken into account for the purpose of
consideration as to whether there has been any disobedience or
wilful violation of the same. Decided issues cannot be reopened;
nor can the plea of equities be considered. The Courts must also
ensure that while considering a contempt plea the power available
to the Court in other corrective jurisdictions like review or appeal is
not trenched upon. No order or direction supplemental to what has
been already expressed should be issued by the Court while
exercising jurisdiction in the domain of the contempt law; such an
exercise is more appropriate in other jurisdictions vested in the
Court, as noticed above. The above principles would appear to be
the cumulative outcome of the precedents cited at the Bar, namely,
Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 :
2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju
[(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance
Service House Construction Coop. Society Ltd. v. Gautam
Goswami [(2008) 5 SCC 339] and Union of India v. Subedar
Devassy PV [(2006) 1 SCC 613] .
10. In Jhareswar Prasad Paul v. Tarak Nath Ganguly
[(2002) 5 SCC 352], the Apex Court in paragraph 11 held as
follows:-
"11. The purpose of contempt jurisdiction is to uphold the majesty
and dignity of the courts of law, since the respect and authority
commanded by the courts of law are the greatest guarantee to an
ordinary citizen and the democratic fabric of society will suffer if
respect for the judiciary is undermined. The Contempt of Courts
Act, 1971 has been introduced under the statute for the purpose of
securing the feeling of confidence of the people in general for true
and proper administration of justice in the country. The power to
punish for contempt of court is a special power vested under the
Constitution in the courts of record and also under the statute. The
power is special and needs to be exercised with care and caution. It
should be used sparingly by the courts on being satisfied regarding
the true effect of contemptuous conduct. It is to be kept in mind that
the court exercising the jurisdiction to punish for contempt does not
function as an original or appellate court for determination of the
disputes between the parties. The contempt jurisdiction should be
confined to the question whether there has been any deliberate
disobedience of the order of the court and if the conduct of the party
who is alleged to have committed such disobedience is
contumacious. The court exercising contempt jurisdiction is not
entitled to enter into questions which have not been dealt with and
decided in the judgment or order, violation of which is alleged by
the applicant. The court has to consider the direction issued in the
judgment or order and not to consider the question as to what the
judgment or order should have contained. At the cost of repetition,
be it stated here that the court exercising contempt jurisdiction is
primarily concerned with the question of contumacious conduct of
the party, which is alleged to have committed deliberate default in
complying with the directions in the judgment or order. If the
judgment or order does not contain any specific direction regarding
a matter or if there is any ambiguity in the directions issued therein
then it will be better to direct the parties to approach the court which
disposed of the matter for clarification of the order instead of the
court exercising contempt jurisdiction taking upon itself the power to
decide the original proceeding in a manner not dealt with by the
court passing the judgment or order. If this limitation is borne in
mind then criticisms which are sometimes levelled against the
courts exercising contempt of court jurisdiction "that it has
exceeded its powers in granting substantive relief and issuing a
direction regarding the same without proper adjudication of the
dispute" in its entirety can be avoided. This will also avoid
multiplicity of proceedings because the party which is prejudicially
affected by the judgment or order passed in the contempt
proceeding and granting relief and issuing fresh directions is likely
to challenge that order and that may give rise to another round of
litigation arising from a proceeding which is intended to maintain
the majesty and image of courts."
11. In V.M. Manohar Prasad v. N. Ratnam Raju
[(2004) 13 SCC 610], the Apex Court considered whether any
direction providing any substantive relief could be granted
while exercising contempt jurisdiction and held as follows:-
"7. On the basis of what has been indicated above, the first
submission is that there is no violation of the order passed by the
learned Single Judge directing regularisation of the employees,
since the said order has not been violated in any manner. The
matter was considered in the light of the scheme for regularisation
dated 24-4-1994. Secondly, it is submitted that the Contempt Court
had no jurisdiction to issue any direction providing any substantive
relief to the petitioners moving the contempt petition. In support of
this contention reliance has been placed upon decisions of this
Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5
SCC 352 : 2002 SCC (L&S) 703] and Notified Area Council v.
Bishnu C. Bhoi [(2001) 10 SCC 636 : 2002 SCC (L&S) 1018] .
There is no doubt about the position under the law that in contempt
proceedings no further directions could be issued by the court. In
case it is found that there is violation of the order passed by the
court the court may punish the contemnor otherwise notice of
contempt is to be discharged. An order passed in the contempt
petition, could not be a supplemental order to the main order
granting relief."
A similar issue came up for consideration before the Apex Court
in Bihar Finance Service House Construction Coop.
Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and
the Court held as follows:-
"32. While exercising the said jurisdiction this Court does not intend
to reopen the issues which could have been raised in the original
proceeding nor shall it embark upon other questions including the
plea of equities which could fall for consideration only in the original
proceedings. The court is not concerned with as to whether the
original order was right or wrong. The court must not take a
different view or traverse beyond the same. It cannot ordinarily give
an additional direction or delete a direction issued. In short, it will
not do anything which would amount to exercise of its review
jurisdiction. (See Director of Education v. Ved Prakash Joshi
[(2005) 6 SCC 98 : 2005 SCC (Cri) 1357 : 2005 SCC (L&S) 812 :
AIR 2005 SC 3200] and K.G. Derasari v. Union of India [(2001) 10
SCC 496 : 2002 SCC (L&S) 756] .)"
12. The Apex Court had also occasion to consider a similar
issue in Union of India v. Subedar Devassy PV [(2006) 1
SCC 613] and held in paragraphs 2 and 6 as follows:-
"2. While dealing with an application for contempt, the court is really
concerned with the question whether the earlier decision which has
received its finality had been complied with or not. It would not be
permissible for a court to examine the correctness of the earlier
decision which had not been assailed and to take a view different
from what was taken in the earlier decision. A similar view was
taken in K.G. Derasari v. Union of India [(2001) 10 SCC 496 : 2002
SCC (L&S) 756] . The court exercising contempt jurisdiction is
primarily concerned with the question of contumacious conduct of
the party who is alleged to have committed default in complying
with the directions in the judgment or order. If there was no
ambiguity or indefiniteness in the order, it is for the party concerned
to approach the higher court if according to him the same is not
legally tenable. Such a question has necessarily to be agitated
before the higher court. The court exercising contempt jurisdiction
cannot take upon itself the power to decide the original proceedings
in a manner not dealt with by the court passing the judgment or
order. Though strong reliance was placed by learned counsel for
the appellants on a three-Judge Bench decision in Niaz Mohd. v.
State of Haryana [(1994) 6 SCC 332] , we find that the same has no
application to the facts of the present case. In that case the
question arose about the impossibility to obey the order. If that was
the stand of the appellants, the least it could have done was to
assail correctness of the judgment before the higher court.
xxx xxx xxx
xxx xxx xxx
6. If any party concerned is aggrieved by the order which in its
opinion is wrong or against the rules or its implementation is neither
practicable nor feasible, it should always either approach the court
that passed the order or invoke jurisdiction of the appellate court.
Rightness or wrongness of the order cannot be urged in contempt
proceedings. Right or wrong, the order has to be obeyed. Flouting
an order of the court would render the party liable for contempt.
While dealing with an application for contempt, the court cannot
traverse beyond the order, non-compliance with which is alleged. In
other words, it cannot say what should not have been done or what
should have been done. It cannot traverse beyond the order. It
cannot test the correctness or otherwise of the order or give
additional direction or delete any direction. That would be
exercising review jurisdiction while dealing with an application for
initiation of contempt proceedings. The same would be
impermissible and indefensible."
In view of the factual and legal position as stated above, we are
of the opinion that there is no willful disobedience to the
directions of this Court in Annexure A4 judgment dated
09.11.2021 in OP(CAT)No.211 of 2016 and accordingly the
above Contempt of Court Case is dismissed.
It is made clear that the dismissal of the above Contempt
of Court Case will not stand in the way of the petitioner
agitating his claims, in accordance with law, before the
appropriate forum, based on Circular No.555 dated 04.02.2016
issued by the PCDA.
Sd/-
ANIL K. NARENDRAN
JUDGE
Sd/-
VIJU ABRAHAM
JUDGE
sm/
APPENDIX OF CON.CASE(C) 739/2022
PETITIONER ANNEXURES
Annexure1 TRUE PHOTOCOPY OF THE LETTER DATED
19.09.2019 ISSUED BY THE UNDER
SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF DEFENCE ADDRESSED TO THE
DIRECTOR GENERAL, NCC
Annexure2 TRUE PHOTOCOPY OF THE CIRCULAR NO. C-
203 DATED 25.09.2019 ISSUED BY THE
RESPONDENT
Annexure3 TRUE PHOTOCOPY OF THE LETTER DATED
21.10.2019 ISSUED BY THE RESPONDENT
Annexure4 CERTIFIED COPY OF THE JUDGMENT DATED
09.11.2021 IN O.P (CAT) NO. 211/2016
Annexure A5 True photocopy of the Circular No.555
dated 04.02.2016 along with its table
No.1 issued by the Assistant Controller
(P)
Charge MEMORANDUM OF DRAFT CHARGE AGAINST THE
ADDL. 2ND RESPONDENT SOUGHT TO BE
IMPLEADED
RESPONDENT ANNEXURES
Annexure R1 The true copy of the Govt. letter No.
5431/DGNCC/FC/IIICS/NS(B)/1130/A/D(GS.V
I) dated 23.05.1980
Annexure R2 True copy of the O.M. No.F No.
45/86/97-P and PW(A) Part II dated
27.10.1997 issued by the Govt. of India
Annexure R3 The true copy of the O.M.No. 38/37/08-P
and W(A) dated 01.09.2008 issued by the
Govt. of India 38/37/08
Annexure R4 The true copy of the compliance report
filed by the 1st respondent in C.P. No.
51/2018 in O.A. No. 1053/2016 before
the Hon,ble CAT, Ernakulam Bench dated
27.09.2019
Annexure R5 The true copy of the order in CP(C)
No.51/2018 in O.A.no. 1053/2016 passed
by the Hon,ble CAT, Ernakulam Bench
dated 29.10.2019
